Important! - BEFORE YOU LOG INTO BIGFOOT, CAREFULLY READ THE TERMS AND CONDITIONS OF THIS AGREEMENT. BY LOGGING INTO BIGFOOT, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT AND ARE BOUND BY AND ARE BECOMING A PARTY TO THIS AGREEMENT. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT LOG INTO THIS WEBSITE/SOFTWARE SERVICE.
1. LICENSE GRANT - Smartware Group ("SG") grants you ("USER") the non-exclusive, non-transferable, right to use Bigfoot Anywhere ("SOFTWARE") and accompanying documentation ("DOCUMENTATION") in the manner described below under "SCOPE OF LICENSE AGREEMENT".
2. SCOPE OF LICENSE AGREEMENT - If you have paid for multiple User licenses for Bigfoot Anywhere, you may create as many users as your license allows for based on user type (Regular or Requestor). You may not rent, lease, sub-license, give, copy, lend, nor convey the software and documentation to any other user. You may not modify, translate, reverse engineer, decompile, disassemble or create derivative works based on the software and documentation.
3. COPYRIGHT - You acknowledge and agree that SOFTWARE and all related documentation are the sole and exclusive property of SG and are copyrighted works, protected by United States copyright laws, other intellectual property laws and international treaty provisions. Title, source code, ownership rights, intellectual property rights, interest, trademarks, and trade names of software and documentation shall remain the sole and exclusive property of SG.
4. CONFIDENTIALITY - USER may not resell, rent, lease or distribute SOFTWARE, including its source code and any compiled components, and shall not employ SOFTWARE in any way that competes either directly or indirectly with SG. USER agrees to indemnify and hold SG harmless from any misappropriation of SG's trade secrets or infringement of SG's intellectual property rights that is caused or encouraged by USER's failure to abide by this Agreement, and further agrees that any such misappropriation or infringement shall be grounds for SG to terminate the licenses granted under this Agreement
In the event that SG delivers any source code for self-hosting to the USER, USER agrees and acknowledges that SOFTWARE source code is proprietary, valuable, and not generally known in the industry and represents a trade secret owned by SG. USER agrees that it will maintain, through reasonable means, the confidentiality of SOFTWARE source code, and will not disseminate or allow unrestricted access thereto. User shall not distribute SOFTWARE source code to anyone other than employees and software developers of Licensee's organization or third party contractors working on behalf of Licensee's organization with a need to know and who agree to abide by all terms and conditions of this Agreement
5. LIMITED WARRANTY - THE FOLLOWING WARRANTIES ARE IN LIEU OF ALL OTHER WARRANTIES EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTIBILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND SG AND ITS SUPPLIERS EXPRESSLY DISCLAIM ALL WARRANTIES NOT STATED HEREIN. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY, FROM STATE TO STATE.
SG warrants that the software shall perform in substantial compliance with the accompanying documentation, as they may be amended from time to time. If software fails to comply with the documentation, SG shall repair critical issues within 1-14 days of notification of such issue by USER Issues are deemed "critical" at the sole discretion of SG. All issues, critical and non-critical, will be resolved in a reasonable amount of time. This limited warranty does not apply to and expressly excludes misuse, damage, abuse or any modification to the software by USER.
6. LIMITATION OF LIABILITY - You are solely responsible for determining the suitability of software for its purposes, and you assume all risks associated with the purchase and use of software and documentation. In no event shall SG be held liable for any damages incurred by user, including but not limited to, loss of profits, business interruption, lost savings, loss of data, or any other direct, indirect or consequential damages arising out of use or the inability to use software, even when advised of the possibility of such damages. However, SG shall be responsible to take reasonable steps to restore lost data resulting from its negligence.
USER acknowledges that they are responsible for developing, documenting, and executing a proper maintenance plan and that SOFTWARE is intended to assist USER with this maintenance plan, but in no way guarantees that proper maintenance activities are being executed.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THE ABOVE LIMITATION OF LIABILITY MAY NOT APPLY TO YOU.
7. TERMINATION - SG may terminate the license agreement upon failure of USER to comply with any of the material terms and conditions of this agreement. SG will provide notice via email or delivered letter of its intent to terminate the license agreement and user will have twenty (20) days prior to termination date to cure the failure of terms. Upon termination of this agreement, all unpaid charges owed to SG by USER shall become immediately due and payable. Upon termination of this license agreement, USER will destroy or return all originals and copies of the documentation as directed by SG.
8. REMEDIES - SG provides a 99.7% uptime commitment. This commitment guarantees that the SOFTWARE will be running properly and available to the internet during this uptime. The commitment is based on one year of service and amounts to one day of downtime within one year. In the event USER experiences "downtime" exceeding our commitment, USER must report the downtime and request credit in writing within 30 days of the downtime. Service credit will be applied to the next billing cycle. Service credit will be valued at 100% of the service fee charged during downtime that exceeds 0.3%.
9. GOVERNING LAW - This Agreement shall be deemed to be made in the State of New Hampshire and shall be construed in accordance with the substantive laws of the State of New Hampshire. The parties agree that the courts of the State of New Hampshire shall have exclusive jurisdiction over any dispute arising out of this Agreement and that any action in law or equity brought in connection with this Agreement shall be brought in a court located within the State of New Hampshire. The parties consent to the jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available
10. U.S. GOVERNMENT RESTRICTED RIGHTS - This software and documentation are provided with RESTRICTED RIGHTS. Use, duplication, or disclosure by the Government is subject to restrictions as set forth in sub-paragraph (c) (1) (ii) of The Rights in Technical Data and Computer Software clause at DFARS 252.227-7013 or in the Commercial Computer-Restricted Rights clause at FAR 52.225-19 when applicable. Manufacturer/Contractor is Smartware Group, PO Box 188, Center Harbor, NH 03226.
11. EFFECT ON PRIOR AGREEMENTS: To the extent that any term of this Agreement is contrary to a term previously agreed upon between the parties concerning the licenses granted herein, the terms of this Agreement shall be controlling. No modification, renewal, extension, or waiver of this Agreement, or any of its provisions, shall be binding unless in writing.
Should you have questions concerning this agreement, or if you desire to contact Smartware Group for any reason, please contact: Smartware Group, PO Box 188, Center Harbor, NH 03226 - 866-858-7800.